Underwood v. Maloney

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: Stern
• Citation: Underwood v. Maloney, 152 F.Supp. 648 (E.D. Pa. 1957)
• Decision Date: 23 May 1957
• Docket Number: 14547.,Civ. A. No. 14398
• Parties: Roy J. UNDERWOOD v. William E. MALONEY, individually and as representative of the International Union of Operating Engineers. Homer DAWSON, et al. v. William E. MALONEY and Hunter P. Wharton, individually and as representatives of and on behalf of the International Union of Operating Engineers.

152 F. Supp. 648

Roy J. UNDERWOOD v. William E. MALONEY, individually and as representative of the International Union of Operating Engineers.

Homer DAWSON, et al. v. William E. MALONEY and Hunter P. Wharton, individually and as representatives of and on behalf of the International Union of Operating Engineers.

Civ. A. Nos. 14398, 14547.

United States District Court E. D. Pennsylvania.

May 23, 1957.

COPYRIGHT MATERIAL OMITTED

Freedman, Landy & Lorry, by Abraham E. Freedman, Philadelphia, Pa., for plaintiffs.

Montgomery, McCracken, Walker & Rhoads, by Charles A. Wolfe, Myers, McVeigh, Mansfield & O'Brien, by Cornelius C. O'Brien, Jr., Philadelphia, Pa., for defendants.

William H. Thomas, Cleveland, Ohio, Gen. Counsel Emeritus, International Union of Operating Engineers.

CLARY, District Judge.

We have for decision two actions; the case of Roy J. Underwood against William E. Maloney, Civil Action No. 14398, and the case of Homer Dawson and 11 others against William E. Maloney and Hunter P. Wharton, being Civil Action No. 14547.

In the Underwood case, Underwood seeks to enjoin the enforcement of the decision of the General Executive Board of the International Union of Operating Engineers suspending him and to reverse such action. He seeks restoration to his position as President and Business Manager of Local 542 and its branches, 542A, 542B, and 542C of the said International Operating Union, to restrain Maloney, the General President, and the General Executive Board from interference with the performance of his duty as President and Business Manager, and further seeks damages in a total sum of $250,000.

The Dawson case purports to be a class action, Dawson and his colleagues seek to set aside and nullify the order of supervision invoked by the General President on August 19 of 1952. They seek reinstatement of all the officers of Local 542 and to restore control of the Local to its own membership, return of all funds, records and assets, and an accounting from the defendant Maloney and from Wharton, who has been installed by Maloney as Supervisor of the Local and its branches.

The Court will now proceed to outline the facts adduced in this record which it deems pertinent to a decision of the legal issues which have to be this day decided.

For purposes of clarity I propose to outline the facts in a series of periods, the first period ranging from 1938 to 1948, the second period running from March 31 of 1948 to May 1 of 1952, the third period from May 1, 1952, to September 27 of 1952, and the fourth and final period from September of 1952 to the present time.

Despite the objection of the defendants to the testimony antedating 1948, I feel that for a full understanding of the issues involved in the case, the evidence which was introduced of the Union and its activities during this ten-year period is entirely relevant to a decision of these issues. I shall take that period because, as I recollect the evidence, Mr. Underwood joined the Local in or about the year 1937. The charter of the Local had been granted in 1935. As of the date of Mr. Underwood's first connection with the Union as a member, the Union was under supervision of one Joe Fay, a member of the New Jersey Local. Maloney was not the President at that time. I believe the President at that time was one Huddell. The evidence has disclosed to my satisfaction that the method of operation of Local 542 was anything but good. At that time every worker was compelled to pay to the Union a percentage of his total salary earned during any given week. That was in addition to the dues.

In judging this case I am not losing sight of the real facts of the economic history of the United States. Unions, particularly on the international scheme, from the mid thirties, after the Wagner Act, 29 U.S.C.A. § 201 et seq., were developing rapidly. It is not at all surprising that there should be some difficulties and differences in the course of expanding and growing organizations. However, the Local Union never had a chance to conduct its own affairs. The evidence discloses that up until 1940 there was turmoil in the meetings of the organization and there was this situation, which I definitely deplore, of forcing the members to pay percentage assessments.

That situation, however, was cleared up shortly after Maloney, the defendant in the Underwood case, became the General President.¹ As far as my review of the evidence is concerned, it appeared to be shortly after Maloney was made the International President.

However, Maloney did appoint one Jasper White — and it does not appear in the record on whose suggestion — as Assistant Supervisor,² Joe Fay having been Supervisor at the time Maloney came to office as International President. The actions of White as Supervisor were anything but helpful to the labor movement. I think the evidence clearly discloses that from 1940 to 1947 Joe Fay had little if anything to do with the running of the Local, appearing only occasionally. There is no doubt that the record clearly discloses that White negotiated all contracts during that period.

At that time one William Carter also appeared in the picture from New Jersey, and the evidence discloses that, representing Fay, he, Carter, signed contracts with contractors, collective bargaining agreements, for Local 542, which were the contracts under which the Local worked. I shall have quite a bit more to say about Mr. Carter later in the discussion. I merely point up the fact that that happened during that period.

In 1945 Underwood attempted to secure what I choose to call local independence. There has been used through this case "local autonomy," which I find does not appear anywhere in the picture. "Autonomy" can mean a lot of things, and I don't propose to use "local autonomy" as the basis for a decision or have that word involved in a decision in this case. I prefer to use the term "local independence."

It is extremely significant of White's hold on the Union, his intimidation of members, and so forth, that it took approximately two years to secure enough people to start a lawsuit. However, such a lawsuit was started in the Court of Common Pleas No. 2 of Philadelphia County, the purpose of the suit being to restore independence of operation to the Local Union. After a second review of the evidence in this case I am pointing up at this time that the defendant in the Underwood action and in the Dawson action in this case, when the case came up for trial, immediately agreed, without the necessity of the trial, to have the membership decide for itself (1) whether it wanted independence of operation, and (2) if the vote was in the affirmative, to have an independent election of officers. The vote was had, strongly in favor of independence, and an election of officers was had.

I should note at this time that Fay, having been convicted of extortion in the New York area, which conviction was affirmed by the Supreme Court of the United States in 1947, Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, had been replaced by Third General Vice-President McDonald as Local Supervisor, and that Fay had been immediately after his conviction peremptorily expelled by Maloney from the Union of Operating Engineers.

It is apparent that McDonald and Maloney were at that time perfectly willing to have Local 542 obtain its own independence of operation and function as an independent integral part of the International Union of Operating Engineers.

We now come to the period of April 1, 1948, to May 1, 1952. In that period there was a remarkable improvement in the method of conducting the meetings and in the approach of the officers and business agent and the Executive Committee to Union obligations. I recognize and I think the evidence clearly discloses that this did not happen without some bickering and quite a bit of turmoil. I think the evidence also establishes that it was McDonald's suggestion to Underwood and the membership that a system of fines of $5 to $25 be imposed on anyone who interrupted meetings, which seems to the Court to be a sensible and practical solution. At any rate, as a result of the putting on of the penalties, the turmoil and bickering soon calmed down, and during Underwood's term of office — and I am limiting it to the period up until July of 1952 — any member who desired to talk upon a subject on the floor was fully protected in his right of free speech and free expression at that time. I say that even though such a person might have ideas which were contrary to that of the President and General Manager and the thinking and decisions of the Executive Board of Local 542. I shall not advert to that particular subject again.

In the situation where Underwood and his elected group of officers obtained their independence as of March 31, 1948, they were faced with a problem of negotiating contracts which expired on April 30 of that year. That it was a difficult situation is perfectly understandable, and that there was some trouble at that time, in view of my previous statement, is also completely understandable. I do not think that it is necessary for a decision in this case — except for one element to which I shall refer later in the opinion — to talk about the contract negotiations of 1948 and 1949. That was the period of the Feinsinger arbitration, and it was not until October of 1949 that the final decision was made. It resulted in a reasonable settlement of difference between the contractors and Local 542.

There is, however, one point that I want to make at this time, that within two months after Underwood became President there was a short strike, that Underwood was in a large measure a proponent of that strike, even though it was called in violation of International contracts and even though it was called in violation of the master agreements with the Building and Construction Trades Council, of which Local 542 was a member.³ It was a very...